Case Western Reserve Journal ofInternational Law

Volume 2 | Issue 2

1970

The Moment of Death: An International Medico-Legal Problem Concerning Human OrganTransplantationByron E. Siegel

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Recommended CitationByron E. Siegel, The Moment of Death: An International Medico-Legal Problem Concerning Human Organ Transplantation, 2 Case W. Res.J. Int'l L. 120 (1970)Available at: https://scholarlycommons.law.case.edu/jil/vol2/iss2/4

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FORENSIC MEDICINETHE MOMENT OF DEATH:

AN INTERNATIONAL MEDICO-LEGAL PROBLEMCONCERNING HUMAN ORGAN TRANSPLANTATION

BYRON E. SIEGEL

f EDICAL SCIENCE, throughout the world, has begun to focusan increasing amount of attention on the complex subject of

human organ transplantation.' It was not until the advent of thefirst human heart transplant, however, that legal scholars of the

world were forced to re-examinetheir conceptions of the mo-

THE AUTHOR: BYRON E, SIEGEL (A.B., ment of death.' It has becomeThe University of Michigan; J.D., apparent that before physiciansWayne State University) is a memberof the Michigan Bar and is presently can utilize transplantation pro-completing studies toward an LL.M. in cedures to a greater advantage,Legal Medicine at Case Western Re-serve University. assuming the rejection phenom-

enon can be better controlled, 3

there must be an internationalguideline created for the determination of the true moment of death.

1 To help familiarize the reader with the various problems involved in human organtransplantation, see generally, Symposium on Reflections on the New Biology, 15U.C.L.A. L. REV. 267 (1968); three-part series, Transplantation, 282 NEW ENG. J.MED. 786, 848, 896, (1970); Woodside, The Doctor's Dilemma and the Lawyer's Re-sponsibility, 31 OHIO ST. L.J. 66 1970); Halley and Harvey, On an InterdisciplinarySolution to the Legal-Medical Definitional Dilemma in Death, 2 INDIANA L.F. 217(1969).

2 See Reflections on Law and Experimental Medicine, 15 U.C.L.A. L. REv. 436(1968), wherein Chief Justice Warren Burger of the United States Supreme Court wrote:

The complaint of some is that our standards of ethics and rules of law do notkeep pace with scientific developments and the potentials of experimentalmedicine, and thus do not give experimental programs a free rein. This isprobably correct. Law and ethical standards are not subjects of research anddiscovery; they are fruits of slow evolutionary processes. The law does notsearch out as do science and medicine; it reacts to social needs and demands.

3 The rejection problem is based upon the attempt by researchers to prevent graftrejection of the transplanted tissue by the recipient's physiological mechanism. Thus,subsequent to transplantation, immunosuppressive therapeutics are instituted by admin-istration of corticosteroids, such as Immuran or Cortisone, or recently, Anti-LymphocyteGlobulin. However, not only do such therapeutics often fail to prevent the rejection,but they also inevitably lower the body's natural resistance to bacterial infection, suchas from Pneumococcal bacteria which produce pneumonia. See generally, Terasaki,Heart Transplants - The Immunologic Questions, 1968 Hosp. PRAC., vol. 4; HowLong Will it Take?, 1967 MED. WORLD NEWS 35 (1967), Cardiac and Other OrganTransplantation, 206 J.A.M.A. 2489 1968).

4 The crux of the problem of determining the exact moment of death is that if the

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Only after international agreement has been reached, concerningwhen death actually occurs, can the more advanced problems of or-gan donations between countries or the transportation of organsacross national borders be resolved.'

Recorded controversy over the actual center of life functionsbegan as far back as the Babylonians, who thought the liver wasthe seat of the soul and center of life.6 The Egyptians, on theother hand, felt the heart was most essential for life functions.7

Leonardo Da Vinci, trying to observe the moment of death, spenthours attempting to view the soul as it departed from a recently-expired patient.'

Man gradually distinguished the religious aspects of death bydeciding that the soul was the basis of spiritual life and the heartand lungs the center of physical life. Thus emerged the conceptthat death was "the apparent extinction of life, as manifested by theabsence of heartbeat and respiration." 9 A modification of the classicdefinition of death, which is slightly more precise than the older test,requires the existence of insensibility, meaning clinical absence ofcerebral activity and reflexes, cessation of respiration, cessation ofcirculation, and irreversibility.'0

These older legally accepted definitions of death raise many

transplant team waits too long after the donor has suffered failure of metabolic processes,such as brain functions, circulation, and respiration, then the tissue extracted from suchdonor will be decomposed and useless for transplantation purposes. Thus, anoxia, orlack of oxygen to the brain, will cause irreversible brain damage after about four min-utes:

When a person stops breathing, he already has a small amount of oxygenstored in his lungs and an additional amount stored in the hemoglobin of hisblood. However, these are sufficient to keep metabolic processes functioningfor about two minutes. Continued life beyond this time requires an addi-tional source of energy. This can be derived for perhaps another minute or sofrom glycolysis....

A. Guyton, TEXTBOOK OF MEDICAL PHYSIOLOGY 975 (3d ed. 1966).r See generally; Stewart & Wasmuth, Medical and Legal Aspects of Human Organ

Transplantation, 14 CLEVE.-MAR. L. REV. 442 (1965); Barrish, Law of TestamentaryDisposition - A Legal Barrier to Medical Advance, 30 TEMPLE L.Q. 40 (1956);Leatherberry, Heart Transplant: Legal Problems and the Need for New Legislation, 19CASE W. RES. L. REV. 1080 (1968); Authority Asked to Use Homicide Victims' Or-gans, 1969 AMA NEws; Hall, The Doctor and the Law - Some Medicolegal ProblemsInvolved in Human Tissue Donation and Transplantation, 1969 NEW PHYSICIAN 505.

6 Brewer, Cardiac Transplantation: An Appraisal, 205 J.A.M.A. 101 (1968).7 Id.

8Id.

9 DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (24th ed. 1965).10 Medical v. Legal Definitions of Death, 204 J.A.M.A. 424 (1968).

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problems in light of modern medical advances. Historically, thedefinition of death has been left to the medical profession ratherthan to legislatures or the courts, as medical science is constantlychanging." In agreement with the rest of the world medical com-munity, United States surgeons assert 2 that since the organ to betransplanted must be viable at the time of transplantation, the or-gan must be removed from the donor as close to the time of deathas possible.'" Of course, if it is alleged that the tissues were excisedtoo soon and the donor was legally alive, the transplanting surgeoncould become involved in civil litigation for negligence" and/or acriminal action for homicide. 15 In addition, alleged removal oftissues before actual death could even result in claims of eutha-nasia against the surgeon. 6

Under the older definitions of death, the patient could be as-sumed legally dead only if there was no evidence of cardiac functionfor ten minutes.'7 Adherence to the classic definitions of death hasled to the following rationale:

Death is the final and irreversible cessation of perceptible heartbeats and respiration. Conversely, as long as any heart beats orrespiration can be perceived, whether with or without mechanical

11 Jinks, California's Response to the Problems of Procuring Human Remains forTransplantation, 57 CALIF. L REV. 671, 688, (1969).

12 Id.

1a Sommer, Additional Thoughts on the Legal Problems of Heart Transplants, 41N.Y. ST. B.J. 196 (1969).

14 The widow of the donor in Chicago's first successful heart transplant filed amillion dollar damage suit against Cook County Hospital, charging that her donor-husband died because of careless and negligent acts by the hospital personnel. N.Y.TIMES, Feb. 9, 1969, at 16, col. 2 (city ed.).

15 A heart transplant was performed in Israel, in which the surgeons who performedthe operation were accused of murdering the donor-patient, because of the transplanta-tion procedures followed. N.Y. TIMES, Feb. 3, 1969, at 8, col. 6. It has been arguedthat, technically, murder may be committed in the transplanting of organs from onehuman to another. A murder charge against a physician could result if the doctor tooka vital organ from a donor who had not died from a combination of failure of circulation,respiration, and brain activity. This is based on the rationale that it is illegal to shortenlife intentionally, no matter how proper the motive or how inevitable the donor's death.N.Y. TIMES, May 8, 1968, at 23, col. 1 (city ed.).

16 Ethics in Medical Progress: Whose Responsibility?, 1968 HosP. PRAC. 16.Euthanasia is the creation of a quiet painless death by an intentional putting to death byartificial means of persons with incurable or painful illnesses. STEDMAN'S ILLUSTRATEDMEDICAL DICrIONARY, Williams and Wilkins Co., Baltimore, 21st ed., (1966). Thus,a patient suffering severe pain from a hopeless case of metastatic carcinoma would be aforeseeable candidate for euthanasia. All the physician need do is triple the usual doseof the steroids usually administered to the patient. The patient's reaction would be aquiet, fairly-rapid expiration. As of March 1970, this procedure is not legal in theUnited States.

IT Transplants: Hopes and Anxieties, THE LONDON TIMES, June, 1968.

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or electrical aid, and regardless of how the heart beat and respira-tion were maintained, death has not occurred. 18

Advances in modern medicine, however, have led to a morecomprehensive understanding of death, which theorizes that manand his biological system die by degrees rather than suddenly.19 Inother words, death is said to occur at several levels: cellular, bio-logical, and clinical.'o Under this theory, clinical death occurs whenspontaneous heart beat and breathing cease,21 whereas biologicaldeath is that state of damage and disorganization which even resus-citation devices cannot reverse.22 Cellular death is an irreversibledegeneration or disorganization of cells which can occur long afterthe death of other physiological systems.2"

The older definitions of death are criticized by many surgeonswho argue that the definitions unnecessarily restrict proper use oftransplantable tissue.24 It has been proposed that a more realisticdefinition be formulated to preserve tissues for transplantation andother purposes, 25 and that determination of the moment of deathshould be based on uniform and objective medical criteria, ratherthan a physician's determination. 2

0 These would appear to bestrong arguments in cases in which, if the recipient is to benefit,action must be prompt in excising the organs, since tissues may besuitable for transplantation only if removed before the failure ofcellular metabolism. Today, many surgeons favor a redefinition ofdeath based on neurological tests, 28 and the electroencephalogram(EEG) is considered to be a useful device in confirming the mo-ment of death.2"

1 8M. Houts, COURTROOM MEDICINE 17 (1967).

19 Robertson & Stanley, The Significance and Future of Organ Banking, 74 CASEAND COMMENT 19 (1969).

20 Gorney, The Biology and the Future of Man, 15 U.C.L.A.L. REv. 311 (1968).21 Id.22 Id; but see Leatherberry, Heart Transplants: Legal Problems and the Need for

New Legislation, 19 CASE W. RES. L. REv. 1080 (1968).23 Supra note 20.2 4 Supra note 11.25 Id.

26 Halley & Harvey, On an Interdisciplinary Solution to the Legal-Medical Defini-

tional Dilemma in Death, 2 INDIANA L.F. 217,221 (1969).2 T Stason, The Role of Law in Medical Progress, 32 LAW AND CONTEMP. PROB. 563,

568 (1967); see also supra note 4.28 Lousiell, The Legal Problem in the Procurement of Organs for Transplantation in

the United States and the United Kingdom, F. Largiader, ORGAN TRANSPLANTATION.(2d ed. 1969).

29 Beecher, After the Definition of Irreversible Coma, 271 J.A.M.A. 1070-1071i(1969).

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Electrical recordings from the surface of the brain or from theouter surface of the head demonstrate continuous electrical activityin the brain. Both the intensity and patterns of this electrical ac-tivity are determined to a great extent by the overall excitation ofthe brain resulting from functions in the reticular activating system.The undulations in the recorded electrical potentials ...are calledbrain waves, and the entire record is called an electroencephalo-gram (EEG).3 o

A further reason some surgeons favor a redefinition of death isthat the ability to maintain circulatory and respiratory functionsshould not be the basic determination, because such vital functionscould foreseeably be maintained artificially by resuscitation.3 1

Thus, irreversible loss of cerebral function would appear to be themajor part of any modern definition.3

Current definitions thus favor a declaration of death at the timeof irreversible coma and when irreparable cellular brain damagehas occurred, but before other organs begin to decompose." Thekey factor to consider is that if extensive and irreversible braindamage has occurred, the patient will never again function as a vi-able individual.3 4

Several attempts at a redefinition of death have been made inthe United States, especially with respect to patients who stillhave respiration and circulation although only "vegetating ' 85 in anunconscious condition and unlikely to ever regain consciousness.3 6

In the report of the Ad Hoc Committee of the Harvard MedicalSchool to revise the definition of death, 7 four indications were of-

30 Supra note 4 at 842.31 Sadler & Sadler, Transplantation and the Law: The Need for Organized Sensi-

tivity, 57 GEo. L.J. 27 (1968); see generally; Biorck, Thoughts on Life and Death,1968 PERSPEcTIvE BIOL. MED. 527; Resuscitation is the use of a resuscitator apparatuswhich forces oxygen into the lungs, thereby allowing for oxygen to get into the circula-tory system. If the heart has stopped, it must be re-started by cardiac shock, massage orinjection of epinephrine. Unless the heart is beating, resuscitation will prove useless,for after approximately four minutes anoxia of the brain will cause irreversible damage.Supra note 4.

32 Supra note 6; see also; Silverman, Saunders, Schwab and Masland, Cerebral Deathand the EEG, 209 J.A.M.A. 1505 (1969); Peters, Law and Human Organ Transplanta-tion, 18 MEDicO-LEGAL BULL. 2 (1969).

33 Use of Cadavers in Transplants Urged, 1969 AMA NEWS 1.34 Burgh, Is Medical Treatment Being Overlooked Because of the Vogue for Trans-

plants?, 1968 MED. WORLD NEWS 67; see also, Wasmuth, The Concept of Death, 30OHIO ST. U.J. 32 (1969).

35 Ayd, What is Death?, 1969 THE NEW PHYsIcIAN 286.

36 Castel, Legal Aspects of Human Organ Transplantation, 77 AM. HEART J. 131(1969).

37 Report of the Ad Hoc Committee of the Harvard Medical School to Examine theDefinition of Brain Death, A Definition of Irreversible Coma, 205 J.A.M.A. 337(1968).

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fered to determine the moment of death in an individual sufferingfrom irreversible coma as a result of permanent brain damage: (1)unreceptivity and unresponsitivity to externally-applied stimuli,(2) no movements or breathing for about an hour, (3) no reflexes,showing an abolition of central nervous system activitiy, and (4) aflat EEG."' The validity of data from the above indicators, 9 how-ever, depends on the absence of either hypothermia4" or centralnervous system depresants.4'

Another definition of death proposed by Dr. Paul S. Rhoadsstresses more certainty in the cases where resuscitation has beenused. He suggests criteria of: (1) fixed, dilated pupils, (2) thecomplete absence of reflexes to painful stimuli, (3) total absence ofrespiration and circulation for five minutes after respiration hasstopped, and (4) a flat EEG.42

Dr. James Z. Appel has compiled a more detailed list of the indi-cators of death, putting special emphasis upon optic and cardiacfunctions. His list includes (1) the complete bilateral dilation ofpupils with no reaction to local constricting stimuli, (2) the absenceof all reflexes, (3) the total cessation of respiration five minutesafter cessation of mechanical respiration, (4) a falling blood pres-sure, and (5) a flat EEG.43

It is worthwhile to note, however, that some authorities believereliance on nearly flat or temporarily flat brain waves is not an ade-quate criterion for determining death, especially since severe barbit-uate poisoning can produce a nearly flat EEG.4 Furthermore anair embolism45 developed during surgery can also lead to a tempor-arily flat EEG.48 With such possibilities, it has been argued that

38 Id. at 337-339.89 Id.4OHypothermia is a condition where the body temperature is below 90 degrees

Fahrenheit or 32.2 degrees centigrade.41 Central Nervous System Depressants are therapeutics such as barbiturates or tran-

quilizers; also, ethyl alcohol.42 Rhoads, Medical Ethics and Morals in a New Age, 205 J.A.M.A. 117 (1968).48 Appel, Ethical and Legal Questions Posed by Recent Advances in Medicine, 205

J.A.M.A. 513 (1968).44 Beecher, Ethical Problems Created by the Hopelessly Unconscious Patient, 278

NEw ENG. J. MED. 1425 (1968).45 An air embolism is a quanity of air bubbles which enter the body through an

opening such as a wound or surgical incision where major arteries or veins are incised.This mass can enter the exposed pulmonary arteries, in a heart transplant, or other majorvessels in other types of transplants. If the air bubbles reach the heart's chambers, afatal response could result; see ROBBINS, PATHOLOGY 159 (3rd ed. 1967).

4S Beecher, supra note 44.

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the physician should observe cessation of electrical activity in thebrain over an extensive period, combined with the failure to respondto any intense stimmulation.47

With such a variety of proposed criteria and the multitude ofcomplications which are always possible, physicians are very con-cerned about the possibility of litigation being brought against them,such as for excising an organ from a donor who is dead for allpractical purposes, but whose respiration is being maintained by aresuscitator.48 With the numerous possibilities of litigation sur-rounding transplantation procedures, it has been maintained that auniform statute is needed to set guidelines for human organ trans-plantation procedures throughout the United States.49

The Uniform Anatomical Gift Act,5" as of February, 1970, hasbeen adopted by 41 states." The Act creates a right in any personof sound mind and 18 years of age to donate his body and pre-cludes revocation of the donation by relatives.52 The Act also al-lows donation by means of a written instrument, thus avoiding pro-bate complications, and permits survivors to donate another's organswhere the deceased failed to indicate his intentions.53 While thisuniform legislation attempts to facilitate donation for public bene-fit, it prohibits removal of organs or tissues unless proper consentis given. In addition, the Act allows the donor to revoke his giftanytime before his death, names individuals and institutions whomay be donees, lists the purposes for which a donation may be used,and eliminates complications of civil liability or criminal prosecutionfor anyone acting in good faith under the guidelines of the provi-sions.5 It is important to note, however, that the Act is limited toante-mortem donations and does not help solve the current problem

47Id.

48 Ethics in Medical Progress: Whose Responsibility?, 1968 Hosp. PRAC. 16.

49 Stewart, Human Organ Transplantation - The Medical Miracle and the LegalMaze, 20 S. CAROLINA L. REv. 521 (1968).

5o Porzio, THE TRANSPLANT AGE 111 (1969); Stason, The Uniform Anatomical

Gift Act, 23 Bus. LAw 919, 927-929, (1969).51 Sadler, Sadler and Stason, Transplantation and the Law: Progress Toward Uni-

formity, 282 NEW ENG. J. MED. 717 (1970); see generally; Richards, Medical-LegalProblems of Organ Transplantation, 21 HASTINGS L.J. 108 (1969) - a survey of allexisting state statutes on transplantation, in the United States, as of November, 1969;Cardiac and Other Organ Transplantation, 206 J.A.M.A. 2496 (1968).

52 Supra note 50 at 919.

53 TIME, April 26, 1969, vol. 93, at 61.54 Fisher, Let the Dead Help the Living, 47 TODAY'S HEALTH 88 (1969).

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of inter-vivos gifts, such ,as kidney donations from the living donor."While this Act does not resolve the problem of determination ofdeath, it does require in section 7 (b) that:

The time of death shall be determined by a physician who tendsthe donor at his death, or if none, the physician who certifies thedeath. The physician shall not participate in the procedures forremoving or transplanting a part.56

The problem of defining the moment of death has also been acontroversial subject in other countries. 7

In Canada, while there is law pertaining to various aspects ofpost-mortem examinations and disposal of cadavers,58 along withthe Model Act,59 which deals with various aspects of human organtransplantation and donation, there is no set legal definition ofdeath.6 One analyst of Canadian law"' believes the trend is torequire that proof of death be based on fatal injuries or conditions,especially when the central nervous system is effected.62

The Soviet Union has not yet formulated a modern definitionof death, since Soviet physicians have been hesitant to accept a def-inition of death based on absence of brain waves." However, ithas been stated that Russian scientists are interested in medicalprogress of this nature and have expanded their own researchprojects.

64

In Sweden, the Royal Board of Medicine has not agreed on amodern definition of death that would even allow for kidney trans-plants. A Swedish donor is not declared dead until 36 hours afterheart activity has completely ceased."5

In Israel, there is a trend away from the older definition ofdeath, 6 based on cessation of breathing and heart beat, to the re-

55 Woodside, Organ 'Transplantation: The Doctor's Dilemma and the Lawyer's Re-sponsibility, 31 OHIO ST. L.J. 66, 89 (1970).

56 Porzio, supra note 50.5r See generally; Castel, Some Aspects of Human Organ Transplantation in Canada,

48 CAN. B. REV. 345 (1968); Symposium, 18 DE PAUL L. REv. 345 (1969).58 Ontario: R.S.O., 1960, c. 14, s. 14, as amended by 1964, c.2.5 9 Ontario Act, S.O., 1962-1963, c.59, as amended by S.O. 1967, c. 38, s.2(2).0 Id.61 Castel, supra note 57, at 351-352.62 Id.63 NEWSWEEK, Nov. 18, 1968, vol. 72, at 84.64 Id.65 Biorck, On the Definitions of Death, 1967 WORLD MED. J. 137-138.66

SHUL. AR. ORAH HAIM cccxxix, 4; cf. RESP. HATAM SAFER, YOREH DEAH

cccxxxviii.

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quirement of additional technical criteria consistent with advancesin modern medicine.07 Present Israeli law provides standards forscientific research with cadavers, allows post-mortem examinations,and permits organs to be donated for transplantation. "

There also appears to be movement toward dealing with certainproblems in transplantation procedures in Great Britain. 6 The Sec-retary of State's Conference on Organ Transplantation declared thattwo independent doctors not involved with a transplant team shouldcertify the death of the donor.70

In South Africa much work has been done toward developinga definition of death considering the interrelated functions of theheart, lungs and brain.7 In January, 1970, a bill was presented tothe South African Parliament" re-defining the moment of deathas that moment when the brain ceases to function. Since cardiacfailure is not involved in this new determination transplant surgeonscan excise a beating heart from a body in which the brain has aflat EEG.

The Ministry of Health in Czechoslovakia has resolved the def-inition of death problem in the same fashion as UniformAnatomi-cal Gift Act by declaring that the attending physician will have dis-cretion to terminate support for patients with irreversable brain dam-age.73

The government of France has been involved in several attemptsto help effect criteria for human organ transplantation.74 In 1966,the French National Academy of Medicine, in a very controversialdeclaration, stated that a patient may be adjudged dead if his EEGhas shown an absence of brain activity for 48 hours, and surgeonsshould then be allowed to remove his organs for transplantation.75

In April of 1968, the French government removed legal obstacles totransplantation procedures by defining death as the cessation ofbrain activity rather than respiration: 76

6 7 Elon, Jewish Law and Modern Medicine, 4 ISRAEL L. REv. 475, (1969).

68 Baker, THE LEGAL SYSTEM OF ISRAEL, Israel Universities Press, Jerusalem, Israel,

1968, at 222.6 9 N.Y. TIMES, May 31, 1969, at 32, col. 1 (city ed.).

70 Id.71 Hunt, Defining Death, 85 S. AFR. L.J. 201 (1968).72 N.Y. TIMES, Jan. 7, 1970, at 7, col. 1 (city ed.).73 Official Directive of the Ministry of Health of Czechoslovakia, as supplementing

the Health Code of 1966; see also Porzio, supra note 50, at 102.74 Porzio, supra note 51, at 102.75 TIME, May 27, 1966, at 78.76 "Official Definitional Adoption," Council of Ministers of France, April 27, 1968.

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The absence of heartbeat, blood circulation and respiration are nolonger to be considered as signs of death; the clinical signs of deathare now the total absence of cerebral activity evidenced by severalflat encephalograms as well as complete lack of reflexes for a suf-ficient period of time."7

There have been several attempts at international medical meet-ings to define the moment of death for heart transplantation pur-poses.

In 1968, at an international meeting of surgeons experienced inheart transplantation, held at Cape Town, South Africa, specialistsfrom Brazil, India, England, Canada, Argentina, South Africa, andthe United States agreed that certain criteria are essential in deter-mining the moment of death. They agreed that the absence of nat-ural heartbeat, respiration or reflexes, and a flat EEG showing ab-sence of brain wave function are necessary."8

In Sydney, Australia, the World Medical Assembly adopted acode79 which prescribes that at least two physicians must pronouncethe donor dead before transplantation surgery can take place. Thecode suggests the physicians with the responsibility for determiningthe moment of death should base their decision on clinical judg-ment and diagnostic aids, such as the EEG."0

In 1969 at an international symposium of medical specialists andtheologians in Spain, it was argued that the determination of deathshould be based upon "bio-electrical silence of the brain" for 24hours. In addition, tests must be run at 30 minute intervals to de-termine whether the patient exhibits the clinical symptoms of in-ability to breathe unaided, lack of reflexes, and alterations of thepupils and blood circulation.81

CONCLUSION

While the foregoing international medical meetings have beeninformative, there is a definite need for adoption of uniform lawson all aspects of human organ transplantation on an internationalscale. While science has made remarkable advances in transplanta-tion, the law has lagged behind in failing to create uniform guide-

See generally Hess, Heart Transplanted in France; Operation First Done in Europe,N.Y. Times, April 30, 1968, at 51, col. 5 (city ed.).

77Id.

78 TIME, July 26 1968, vol. 92, at 49.79 Durdin, Physicians Adopt a Code on Death, N.Y. TIMES, Aug. 10, 1968, at 25,

col. 1 (city ed.).80 Id.81 N.Y. TIMES, July 20, 1969, at 58, col. 7 (city ed.).

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lines for the surgeons and other medical personnel involved. De-termination of the precise moment of death is a major concern ofall surgeons who require viable tissues for transplantation. Underthe older, classic definition of death, the tissues received were oftenalready decomposing. Thus, there should be effected an interna-tional agreement on the criteria for the moment of death, so thatfinal determination can be made legally clear to the physician, eitherwhile attending the patient or during operation of a resuscitator.

An international agreement to resolve the issues of transplanta-tion should be modeled along the lines of the Uniform AnatomicalGift Act, but should also include a more precise definition of deathbased on the latest international scientific findings. Such an agree-ment should also provide for the establishment of an internationaldonor bank, where a computer could be used to store lists of volun-tary donors of different countries, according to tissues to be donated,antigen matching, and other necessary data which would facilitateinternational organ transplantation procedures. To avoid techni-cal complications, at a time when speed is of the essence, the inter-national agreement should also allow for rapid procedures in trans-porting tissues across national borders, from a donor in one nationto a recipient in another.

Just as the legal profession must modify the law to keep pacewith the progress of the medical profession, individuals from allnations who desire progress in international transplantation pro-cedures should join together to effect a uniform international agree-ment. Only with inter-professional understanding between attor-neys and physicians and an international agreement and effortbetween people of all nations will human organ transplantationtruly benefit all mankind.

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of

INTERNATIONAL LAW

Volume 2, No. 2 Spring 1970

Editor-in-Chief

JAMES E. MOORE

Executive Editor

WILLIAM D. Buss II

Carl D. DoolLee J. Dunn, Jr.

Business Manager

ROGER D. MoRiUs

Editors

William L FlemingVilma L. Kohn

Robert B. AtkinsonWilliam P. BobulskyJohn D. ButlerCynthia A. CatalanoKatherine N. ClevelandRichard J. DuffyJack T. FlorHoward J. Hochman

Katherine A. HossofskyDavid V. IrishRoger G. LileLawrence W. NelsonDonald J. NewmanTimothy ReidJeffrey G. RudolphKathleen V. Shartran

John C. SlovenskyJames L SonnebornThomas H. TaylorJohn R. ThalmanDavid F. WalbertEllen WashingtonLewis I. Winarsky

Citations conform to .4 Unilorm System of Citation (I Ith ed. 1967); style conforms to the United StatesGovernment Printing Office Style Manual (rev. ed. 1967).